Australia: Social media and the workplace: Three important things learned from cases to date

Last Updated: 7 November 2016
Article by Michelle Dawson

Social media has become a valuable asset to many businesses. But social media can also be a significant liability when it comes to employees and employment- related issues. What are you doing to protect your organisation?

WHAT YOU NEED TO KNOW:

  • Employers are susceptible to bullying claims arising from employee (or contractor) conduct online, regardless of where and when the online activity took place - make sure your bullying, social media and Internet workplace policies are up to date in order to manage any legal risks.
  • As an employer, you may not have the right to address any disciplinary action for an employee's out-of-hours conduct, so you need to be very clear about your position.
  • As the ownership of LinkedIn accounts is still unresolved at law, you may want to implement specific clauses into relevant employees' contracts, position descriptions and workplace policies.

Here are three important issues that cases have taught us about social media in the workplace.

  1. Employees do not need to be in the workplace to be "at work"

A Fair Work Commission Full Bench late in 2014 said that employees can make bullying claims regardless of whether the alleged bullies were "at work" at the time of the relevant conduct. This decision means that employers are susceptible to bullying claims in respect of the conduct of any employee (or contractor) who bullies another worker whilst engaged in an activity which is authorised or permitted by the employer – regardless of whether or not they were at work (so, it picks up situations such as employees accessing social media while performing work, meal breaks, work-related social functions etce – regardless of location).

ACTION: Employers should review their workplace policies as to bullying, social media and Internet use so as to reflect the Full Bench's decision in this regard and, as best as possible, mitigate the relevant risks.

  1. An employer has no right to control or regulate an employee's out-of-hours conduct

Contrast the point above with the separate and distinct issue of whether an employer can take disciplinary action in relation to out-of-hours conduct (in respect of activities not authorised or permitted by the employer), including out-of-hours conduct involving the use of social media. By reference to the cases, an employee's employment can only be validly terminated because of out-of-hours conduct which is "of such gravity or importance as to indicate a rejection or repudiation of the employment contract by the employee. Absent such considerations an employer has no right to control or regulate an employee's out-of-hours conduct." This sets a very high bar for employers seeking to discipline an employee for inappropriate out-of-hours use of social media.

ACTION: Employers should be careful to ensure that they are entitled to regulate the conduct complained of before taking any disciplinary action (i.e. if the conduct occurred as a result of out- of-hours online behaviour, unless is it significantly serious in its affect upon the employment, it may not be properly open to the employer to address it).

  1. The issue of who owns LinkedIn connections is unresolved at law

Many employees now use LinkedIn in connection with their work. Often, over time (or not, in some instances), an employee's LinkedIn account can become what is essentially a perfectly portable directory of the employer's clients or customers and suppliers. So what happens when the employee leaves that employer and moves on?

LinkedIn grants ownership of a LinkedIn account to the individual in whose name it is held – so, to the employee. In Australia, the law is unresolved as to whether LinkedIn connections constitute confidential information or trade secrets. Some consideration has been given to the issues in other countries, with varied results. In the United States it has been determined that LinkedIn connections are not protectable trade secrets, on the basis that the information is "either generally known in the wider business community or capable of being easily derived from public information". In the United Kingdom it has been determined that LinkedIn connections can constitute confidential information, particularly where an employer encourages the use of LinkedIn in the performance of an employee's duties and/or where the connections are procured with the specific intent that they will be used for the benefit of a new employer.

The Fair Work Commission turned its mind to the issue in 2013, in a limited context, when determining an unfair dismissal claim made by a senior employee whose employment was terminated for attempting to solicit his employer's clients through LinkedIn so as to grow his own private business. Essentially the Commission sided with the employer, finding that the employee "owed an obligation to his employer to faithfully promote his employer's interests" and that sending a LinkedIn message to connections seeking to solicit their business for himself was conduct contrary to that obligation. Whilst perhaps indicative of what the judicial position in Australia may be in respect of such matters going forward, the case was determined in a confined context by reference to its individual facts and circumstances and has therefore not resolved the issue at law, leaving it largely "up in the air".

ACTION: To seek to mitigate the risk of the unknown in this regard, employers should consider putting in place for relevant employees the following:

Contracts which:

  • incorporate LinkedIn contacts obtained during the course of the employment as "confidential information";
  • contain suitable post-employment restraints, perhaps including a restriction on the use of certain LinkedIn contacts after the employment has ended;

Position descriptions which:

note acquiring social media connections as being one of the duties of the role; and

Workplace policies which:

  • specify the expectations of the employer as to relevant social media connections;
  • require employee compliance as a condition of employment; and
  • require employees to have their settings set such that the connections are not viewable at large.

Other measures which some employers are putting into place which may assist in protecting LinkedIn contacts post- employment include:

  • procedures whereby the employer's own database is updated to include employees' new LinkedIn connections and to note changes to the details of existing connections; and
  • paying for relevant employees to operate a 'premium account' (thereby creating perhaps a more-compelling-than- otherwise argument that the employer has some ownership of the account).

CONCLUSION

There is no question that social media is here to stay. As a relatively new and emerging area, the laws and considerations as to the role social media plays in the workplace will continue to evolve and change with time. It will be important for employers to remain apprised of legal developments in the area as they occur and to attend to relevant actions that may arise in order to manage associated legal risk.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances. Madgwicks is a member of Meritas, one of the world's largest law firm alliances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions